After over thirty-five years of no significant amendment, Minister for Land Information Chris Penk has initiated a targeted review of the Public Works Act 1981 (PWA). In line with the Government’s commitments, the review seeks to facilitate the delivery of critical infrastructure projects to rebuild our economy and promote New Zealand’s growth and prosperity.

Guiding principles

The recently released Terms of Reference for the review confirm that it will be driven by three principles: efficiency, effectiveness and clarity. It is intended to enable high-level changes to be made in a timely manner, whilst ensuring the amendments are consistent with the Government’s existing obligations under the Act. The Terms of Reference also confirm that the amendments must still maintain principles of property rights and natural justice, uphold the Crown’s legal obligations under Treaty of Waitangi settlements, and consider Maori land principles under Te Ture Whenua Maori Act 1993.

Purpose and scope

The review highlights the PWA’s failure to consider New Zealand’s modern landscape, neglecting changes in the types of work occurring, what entities are delivering public works, regulatory changes across land systems, Maori land considerations, our growing population, and the impacts of climate change. PWA processes have failed to adapt to this new environment, proving lengthy and inefficient for all parties involved.

To address these issues, the review will focus on key issues in the PWA’s land acquisition and compensation functions. Disposal functions and offer back obligations are specifically out of scope. The identified areas for review are:

1. Improving access to PWA powers, specifically focusing on enabling greater collaboration between agencies, local authorities and network utility operators on joint infrastructure projects;
2. Streamlining administrative processes, such as notice and survey timing requirements;
3. Removing duplications and clarifying processes under the PWA, such as the objection process and the PWA’s relationship with the designation process under the Resource Management Act 1991;
4. Creating better incentives for landowners to reach early agreement with an Acquiring Authority;
5. Aligning compensation processes with international best practice, particularly focusing on modernising dispute resolution, Maori land valuations, and payment processes; and
6. Making technical changes to improve the PWA’s clarity, such as removing redundant sections.

The Expert Advisory Panel - members and timeline

Due to the PWA’s significant powers, and the public interest associated with it, the Minister has assembled an Expert Advisory Panel to assist in this review. The purpose of the panel is to provide independent specialist advice throughout the review process, as well as engage with key stakeholders ahead of any reform. The Panel is comprised of five members. Charlotte von Dadelszen is Chair. She is joined by Spencer Webster, Paul Cassin, James Clareburt, and Pat Dougherty. LINZ has noted that the group has specialist expertise in the PWA, individual property rights, public infrastructure, Maori land law, Treaty settlements, and local government.

In providing its advice, the Panel must keep the fundamental principles of the PWA at the core of its review. Its members must ensure that:

1. The Crown and local authorities can acquire or take interests in land for public works;
2. Legislative procedures are fair and transparent for all parties;
3. There is an independent and binding judicial check on the Crown and local authorities’ powers to take land; and
4. Acquired land is offered back to former owners if it is no longer required for the public work.

The Panel is expected to operate from July to September 2024. There will be five substantial panel meetings, with the commencement meeting set for 2 July 2024 and the final meeting in late September 2024. Within three weeks of the Panel’s conclusion, it will provide the Chief Executive of LINZ with a paper on its findings.

LINZ will provide secretariat support to the Panel during this process.

Key stakeholders and consultation

The first opportunity for the general public to have any input is at the select committee stage. The power to take private land is one of the strongest powers given to government, so the draft amendments are expected to attract considerable public interest.

Terms of Reference have provided what appears to be a non-exhaustive draft of suggested stakeholders including councils, landowners, iwi, and Maori representatives. Due to the public interest associated with this reform, it is crucial that the Panel adequately engages with key stakeholders.

Our thoughts

While we appreciate the drivers for the review and the importance of facilitating the delivery of critical infrastructure, given the lack of substantive reform in this area for 35 years, it does seem to be a lost opportunity to undertake a more fulsome review of the entire Act. In particular, it is disappointing that the disposal and offer back provisions are specifically excluded.

A piecemeal and fragmented approach to legislative reform runs the risk that we will end up with a disjointed and confused act that is unwieldy and difficult to interpret and may not result in significant gains in efficiency. As an example, the changes made to solatium payments in 2017 that were intended to provide an incentive to early settlement of compensation do not appear to have any appreciable effect on that score.

There might be an expectation from interested parties that the review may result in a more generous compensation package being available to affected owners. However that does not seem to be the case based on the Terms of Reference which refer to landowners being “no better or no worse off” following a PWA acquisition.

It remains to be seen how the Panel will address issues related to duplication and collaboration between different agencies but to achieve the efficiencies which this review is intended to deliver, we envisage that once a project is fully designated or consented, the ability to object to a land acquisition will be reduced.

We welcome the ability for key stakeholder engagement in this process. The list of key stakeholders in the Terms of Reference is expressed as “suggested” stakeholders and we hope that there is scope for further key stakeholders to be involved at this early stage in the review, such as the New Zealand Institute of Valuers (who have a key role in compensation assessment) and representatives of electricity generation companies.

Get in touch

If you want to talk to one of our experts about any aspect of the review, please get in touch.

Special thanks to Lucy Scottwood for her assistance in writing this article.